Fetal Heartbeats, Civil Enforcement and Standing Under the Texas Constitution
Submitted July 2021
In IAPA 1804D, Legal Methods for Public Policy, the focus is on learning to read Supreme Court decisions, and in particular learning the language of legal procedure. Procedure is daunting because it is both arcane in its language, and unglamorous in its substance. But especially at the Supreme Court, which is deliberately stingy in taking and deciding cases, procedure is critically important. The “case or controversy” requirement in Article III of the United States Constitution has been interpreted to limit Federal Court jurisdiction to situations in which the plaintiff has “standing”—a sufficient, particularized, and personal grievance arising from the acts in the complaint. Standing ensures that the Federal courts only take actual disputes in which the parties have a strong incentive to present their case, which preserves judicial resources, avoids decisions that are abstract and advisory, and hews to the grant of jurisdiction over “cases and controversies.”
Standing is not sexy, but it turns out to be very important. In our seminar, for example, it might have been exciting to parse the Louisiana abortion statute not in terms of the right to privacy but focusing instead on the justices debates over abortion provider standing in June Medical Services LLC v. Russo, 140 S. Ct. 2103 (2020), was incredibly timely. Standing was the deciding factor in many of the election fraud cases following the 2020 presidential election. See, e.g., Wood v. Raffensperger, 2020 U.S. Dist. LEXIS 244731 (N.D. Ga. 2020); Donald J. Trump for President, Inc. v. Way, 2020 U.S. Dist LEXIS 196911 (D. N.J. 2020); Feehan v. Wis. Elections Comm’n, 2020 U.S. Dist. LEXIS 231603 (E.D. Wis. 2020).
Standing may become an important issue in the coming litigation wave over private citizen suits authorized under new fetal heartbeat abortion statutes. Texas Senate Bill 8, 87th Leg., Reg. Sess. (Tex. 2021) (“S.B. 8”), signed into law in July of 2021 provides, in substance, that it is unlawful to perform an abortion, or to abet or assist in the performance of an abortion, of a fetus with a detectable heartbeat, which generally appears at approximately six weeks of gestation. “Fetal heartbeat” abortion laws have been adopted in other states, and have been found, so far, to conflict with existing Supreme Court precedent that protects the right to abortion up to viability—approximately 24 weeks of gestation (e.g. MKB Mgmt. Corp. v. Stenehjem, 795 F.3d 768 (Eighth Cir. 2015)).
Texas’ statute combines the heartbeat test with another twist—civil, rather than criminal enforcement. S.B. 8 gives the exclusive right to enforce the law to private citizens; state actors are prohibited from enforcing the law (with the possible exception of state medical licensing authorities who theoretically could sanction medical professionals who violate the law). Section 171.208(a) states that
Any person, other than an officer or employee of a state or local governmental entity in this state, may bring a civil action against any person who
Performs or induces an abortion in violation of this chapter;
Knowingly engages in conduct that aides or abets the performance or inducement of an abortion . . . in violation of this chapter . . .
Prevailing claimants can obtain prospective injunctive relief and are entitled to liquidated damages of not less than $10,000 per abortion performed, and attorney’s fees. S.B. 8 §171.208(b)(1)-(3).
By placing enforcement solely in the hands of private plaintiffs, the Texas legislature evidently hoped to make constitutional review more difficult. Typically, abortion providers sue the state law enforcement authorities to enjoin enforcement. In this case, however, enforcement actions can be brought by any private citizen, and it is not possible in the absence of a live case to identify in advance a potential plaintiff against whom a case could be brought to enjoin enforcement. Alternatively, it remains impossible to sue ALL of the potential plaintiffs.
Litigation over S.B.8 has nonetheless begun. Whole Women’s Health v. Jackson, et al., Civil Action No. 21-cv-616 (W.D. Tex. Filed July 13, 2021), is a defendant class action asserting claims under 42 U.S.C. §1983 (among others) as the basis for enjoining enforcement of S.B. 8. However, standing may be yet an additional barrier to plaintiffs seeking to enforce S.B. 8. The plaintiffs, understanding that S.B. 8 purports to remove state actors from enforcement of the law (thus, arguably removing state actors from the decision to enforce a law which might otherwise be subject to Constitutional attack), have, among other things, sued Texas judges as a class of defendants with the goal of enjoining them from hearing civil enforcement cases under S.B 8 brought by private plaintiffs.
Whole Women’s Health v. Jackson implicates a host of complex legal issues. It is far from the first suit to challenge private right to sue laws in the abortion context, and past decisions have not been kind to the plaintiffs. Planned Parenthood of Greater Tex. Surgical Health Servs. v. City of Lubbock, 2021 U.S. Dist. Lexis 111934 (N.D. Tex. 2021), is a recent example. There, the Court dismissed the complaint for lack of jurisdiction because relief against city would not be effective to protect abortion providers from private suits under the city ordinance; therefore, the plaintiffs lacked standing. See also, Okpalobi v Foster, 244 F.3d 405(5th Cir. 2001); K.P. v. LeBlanc, 729 F.3d 427 (427 (5th Cir. 2013). Standing of the plaintiffs challenging the law was the sticking point in these decisions. Perhaps the Whole Women’s Health plaintiffs have found the solution by suing Texas judges as a class.
Standing could be determinative in cases involving S.B. 8 in a different way, though. Members of the public suing under S.B. 8 will have a hard time showing that they have a particularized injury justifying the invocation of the courts’ power on their behalf. That S.B. 8 specifically provides them with a cause of action may not, in the end, be determinative.
Just this past June, the Supreme Court held that Congress’ creation of a private cause of action cannot confer standing on persons who have not suffered a particularized injury. Transunion LLC. V. Ramirez, 141 S. Ct. 2190 (2021), was a class action under the Fair Credit Reporting Act, 15 U.S.C. §1681 et. seq. The plaintiffs alleged that Transunion had violated the FCRA by, among other things, failing to follow reasonable procedures to assume maximal accuracy in credit reports. Section 1681n(a) of the Act provides for consumers to sue and recover statutory damages (including punitive damages and attorney’s fees) for violations of the Act. The plaintiffs alleged that Transunion had negligently misidentified them as potential terrorists.
Transunion had only provided the mistaken terrorist identifications to potential creditors of 1853 of the 8185 putative class members; the records of the others were inaccurate, but those records had not been shared with any third party. Transunion raised the issue of standing, but it was rejected in the District Court (see Ramirez v. TransUnion LLC, 2016 U.S. Dist. LEXIS 143450, where plaintiffs prevailed at trial, and were rejected again by the Ninth Circuit. Ramirez v. TransUnion LLC, 951 F.3d 1008 (9th Cir. 2020)).
The Supreme Court granted certiorari and reversed. The class members whose “misinformation” had not been shared outside of TransUnion did not have injuries sufficiently concrete to create standing even though Congress had specifically mandated that credit reporting agencies have adequate procedures to ensure accurate reporting and gave private plaintiffs the right to sue for violations of the Act’s requirements.
Congress’s creation of a statutory prohibition or obligation and a cause of action does not relieve courts of their responsibility to independently decide whether a plaintiff has suffered a concrete harm under Article III any more than, for example, Congress’s enactment of a law regulating speech relieves courts of their responsibility to independently decide whether the law violates the First Amendment . . . .
For standing purposes, therefore, an important difference exists between (i) a plaintiff ’s statutory cause of action to sue a defendant over the defendant’s violation of federal law, and (ii) a plaintiff ’s suffering concrete harm because of the defendant’s violation of federal law. Congress may enact legal prohibitions and obligations. And Congress may create causes of action for plaintiffs to sue defendants who violate those legal prohibitions or obligations. But under Article III, an injury in law is not an injury in fact. Only those plaintiffs who have been concretely harmed by a defendant’s statutory violation may sue that private defendant over that violation in federal court. . . .
To appreciate how the Article III “concrete harm” principle operates in practice, consider two different hypothetical plaintiffs. Suppose first that a Maine citizen’s land is polluted by a nearby factory. She sues the company, alleging that it violated a federal environmental law and damaged her property. Suppose also that a second plaintiff in Hawaii files a federal lawsuit alleging that the same company in Maine violated that same environmental law by polluting land in Maine. The violation did not personally harm the plaintiff in Hawaii.
Even if Congress affords both hypothetical plaintiffs a cause of action (with statutory damages available) to sue over the defendant’s legal violation, Article III standing doctrine sharply distinguishes between those two scenarios. The first lawsuit may of course proceed in federal court because the plaintiff has suffered concrete harm to her property. But the second lawsuit may not proceed because that plaintiff has not suffered any physical, monetary, or cognizable intangible harm traditionally recognized as providing a basis for a lawsuit in American courts. An uninjured plaintiff who sues in those circumstances is, by definition, not seeking to remedy any harm to herself but instead is merely seeking to ensure a defendant’s “compliance with regulatory law” (and, of course, to obtain some money via the statutory damages). Those are not grounds for Article III standing.
As those examples illustrate, if the law of Article III did not require plaintiffs to demonstrate a “concrete harm,” Congress could authorize virtually any citizen to bring a statutory damages suit against virtually any defendant who violated virtually any federal law. Such an expansive understanding of Article III would flout constitutional text, history, and precedent. In our view, the public interest that private entities comply with the law cannot “be converted into an individual right by a statute that denominates it as such, and that permits all citizens (or, for that matter, a subclass of citizens who suffer no distinctive concrete harm) to sue.”
141 S.Ct. 2190, 2021 WL 2599472, 20 – 23 (citations omitted).
Suits under S.B. 8 would be brought in Texas state court, not Federal Court, so the case or controversy requirement under Article III of the Constitution is not relevant. But Texas courts require standing as well. The Supreme Court of Texas has written that
In most cases of this general nature, it has usually been required that the plaintiff be a "person aggrieved" or a person whose interests are adversely affected, or a person having a special interest in the matter. This has been held to be true in the absence of statute. City of San Antonio v. Stumburg, 70 Tex. 366, 7 S.W. 754 (1888); San Antonio Conservation Society v. City of San Antonio, 250 S.W.2d 259 (Tex. Civ. App. 1952, writ ref.). Many statutes give the right to review or to institute suit to "persons aggrieved," "persons adversely affected," "any party in interest," or any persons "whose rights are substantially affected." Davis, Standing to Challenge Governmental Action, 39 Minn. L. Rev. 353 at 357 (1955); Jaffe, Standing to Secure Judicial Review: Public Actions, 74 Harv. L. Rev. 1265 (1961); Jaffe, Standing to Secure Judicial Review: Private Actions, 75 Harv. L. Rev. 255 (1961). Where the statute requires that the person be interested, affected, or aggrieved, or (in the absence of a statute) where the common law rule requiring the showing of particular injury or damage is controlling, the plaintiff must allege and show how he has been injured or damaged other than as a member of the general public in order to enjoin the actions of a governmental body. Such suits are essentially private in character and are for the protection of private rights.
Scott v. Board of Adjustment, 405 S.W.2d 55, 56 (Tx 1966).
That was not the end of the analysis in Scott, however:
In other instances, however, the courts have recognized the rights of individuals to challenge governmental action without showing any particular damage. A number of these cases are reviewed in Jaffe, Standing to Secure Judicial Review: Private Actions, 75 Harv. L. Rev. 255 at 281 et seq. Within constitutional bounds, the Legislature may grant a right to a citizen or to a taxpayer to bring an action against a public body or a right of review on behalf of the public without proof of particular or pecuniary damage peculiar to the person bringing the suit. Thus in Spence v. Fenchler, 107 Tex. 443, 180 S.W. 597 (1915), the statute authorized "any citizen" to bring an action to enjoin the operation of a bawdyhouse. The statute went further, specifically providing that "such citizen shall not be required to show that he is personally injured by the act complained of." This Court concluded that the plaintiff did not have to show particular interest or damage.
Ibid.
Thus, it would seem that the Texas courts have left open the possibility that the legislature may endow private parties with the right to institute lawsuits to vindicate a public interest.
There are important caveats. Notably, in Scott, the Court stated that the legislature could confer standing by statute “within constitutional bounds.” The Supreme Court of Texas has recognized that standing is a constitutional requirement and that the Texas legislature cannot set a lower standard than that required by the general doctrine of standing because “courts’ constitutional jurisdiction cannot be enlarged by statute.” Fin. Comm’n of Texas v. Norwood, 418 S.W.3d 566, 582 n.83 (Tex. 2012). A contrary rule “would violate the constitutional separation of powers.” In re Lazy W. Dist. No. 1, 493 S.W.3d 538, 544 (Tex. 2016). At least one appellate court in Texas has construed Scott narrowly, suggesting that it should be viewed as limited to its factual setting—taxpayer suits for injunctive relief—and that state Supreme Court holdings suggesting that the legislature may by statute excuse plaintiffs from showing injury cannot be reconciled with the requirement that the legislature cannot constitutionally set a lower bar than the general rule of standing.
To the extent the line of cases stemming from Scott and Spence remains binding law providing an exception from the constitutional standing requirements, the line of cases can be distinguished as concerning taxpayer and citizen suits for injunctions for which there is a general injury but perhaps not proof of a particular injury, which is unlike the claim for a tax refund here where the injury is distinctly personal.
Best Buy Stores, Inc., v. Hegar, 2021 Tex. App. LEXIS 2882, *15 n.5 (Tex. App. April 16, 2021)
Should the current challenges to S.B. 8 fail to enjoin it from going into effect, standing may become a threshold defense. Although the U.S. Supreme Court’s decision in TransUnion is instructive, it is not controlling on the Texas courts interpreting the limits of standing under the state constitution. In the end, the standing question will be in the hands of the Texas Supreme Court, updating and interpreting a web of decisions dating back 100 years.
For students of the Supreme Court, there is a powerful lesson about partisanship buried here. The liberal wing of the U.S. Supreme Court—Justices Kagan, Sotomayor, and Breyer—champions of the individual class members against the evil corporation—dissented. Justice Kagan suggested that the Court should have respected Congress’ implicit determination in the Fair Credit Reporting Act that shoddy credit recordkeeping by itself is a sufficient injury to confer a cause of action on a person whose credit record was shoddily kept. In the sole remaining dissent, Justice Thomas, as is his habit, based his view on an historical review of the concept of standing, concluding that the founders would have permitted standing where the statute in question affects the rights (in this case, the right to credit records generated by sound procedures) of the individuals who sue.
If these four dissenters gave a thought to the standing issues arising from statutes such as S.B. 8, which put enforcement of abortion laws into the hands of bystanders, would they have been quite so comfortable deferring to Congress on the issue of standing? Partisanship is a dangerous jurisprudential influence, as the shoe can and often does wind up on the opposite ideological foot.
Ari Gabinet is a Senior Fellow at the Watson Institute for International and Public Affairs and the Legal Expert in Residence at Brown University. The Brown Undergraduate Law Review is grateful for his support as our Faculty Advisor.